Veitch Penny LLP - Exeter | Crediton, Devon

Case

O’Donoghue v Elmbridge Housing Trust
Court of Appeal Decision - (16 June 2004)

Issues

(1) Unfair dismissal
(2) Reasons for dismissal
(3) Reasonableness

Facts

In 1989, Mrs O’Donoghue was employed as a live-in housewarden by the Trust. In 2002, She was dismissed at the age of 60. She had previously indicated that she wanted to retire but, as no alternative accommodation had been located which was acceptable to her, she continued to work. She had taken 3½ months off on health grounds. Her employer had requested her consent for a medical examination in order to assist her return to work. As the Trust had received no satisfactory responses for over a three month period, O’Donoghue was dismissed.

The Employment Tribunal had found that the Trust had done as much as it could to obtain the relevant information from O’Donoghue. In the circumstances, they had no alternative but to make a decision with the facts it had before it because of O’Donoghue’s lack of co-operation and her continued refusal to provide medical information. The Tribunal found that O’Donoghue’s dismissal had been for reasons for capability and was fair. Her complaint of unfair dismissal was dismissed.

O’Donoghue was successful on appeal to the Employment Appeal Tribunal (EAT). The EAT found that the reason for O’Donoghue’s dismissal was one of conduct and not capability. Consequently, the dismissal was unfair due to the lack of disciplinary hearing or appeal hearing. Dismissal was not within the range of reasonable responses expected or an employer.

The Trust appealed the decision.

Decision

The Appeal would be allowed.

It was found that the EAT had been incorrect to find that the decision of the original Tribunal had been perverse. The Tribunal’s decision was one it was entitled to make and should not have been interfered with.

Comments

Accordingly, the decision of the Employment Tribunal would be restored. The dismissal by the Trust had been a reasonable response in light of O’Donoghue’s refusal to provide the requested information and consequently there had been no grounds to justify the EAT’s decision to set aside the original decision.